In NLRB v. Special Touch, 2013 U.S. App. LEXIS 4058 (2d Cir. Feb. 27, 2013), the U.S Court of Appeals for the Second Circuit denied a National Labor Relations Board petition for enforcement in a well-reasoned case that employers may view as a sign that someone is listening to their pleas for common sense in labor decisions. The facts are relatively straight-forward. Special Touch subcontracts with nursing and health-related services to provide home health aides. The patient population has either been ordered by a physician to receive home care, has an illness that prevents normal functioning and daily living activities, is homebound, or is receiving in-home health services. The SEIU provided a Section 8(g) notice to the employer of its intent to strike, as is its right. The employer, according to its rights, contacted the approximately 1400 aides scheduled to work to inquire whether they planned to take any time off during the time period provided by the union for the strike. Approximately 75 aides stated their intent to be absent. When the strike began, however, an additional 48 aides who had not previously stated they would be absent failed to appear for work. At the conclusion of the strike, the 75 who had informed the employer of their absence were reinstated; the other 48 were terminated.
On October 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed the National Labor Relations Board's decision that licensed practical nurses (LPNs) employed at a long-term health care facility were not supervisors under the National Labor Relations Act. Indeed, the court emphasized that, "while we are mindful of the limited nature of our review in this appeal, this is not a case in which we merely disagree with the board's conclusions. Our review of the record as a whole reveals that the board meticulously excluded or disregarded record evidence, which, when taken into account, compels a different result." This decision will be a strong weapon for long-term healthcare employers seeking to ward off unionization of nurses at their facilities. To learn more about the decision, please continue reading Littler's ASAP, Eleventh Circuit Rules Licensed Professional Nurses Are Supervisors, Providing Strong Ammunition to Long-Term Healthcare Facilities, by Todd Nierman, Gregory Richters, and Christine Tenley.
Massachusetts Healthcare Bill Bans Mandatory Overtime for Nurses and Limits Spending to Oppose Unionization
On August 6, 2012, Governor Deval Patrick of Massachusetts signed into law Senate Bill 2400, "An Act improving the quality of healthcare and reducing costs through increased transparency, efficiency and innovation." The law is primarily intended as a healthcare cost containment measure and has received some fanfare for that aspect. What has received considerably less attention are two provisions of the law that apply to hospitals as employers. The first prohibits mandatory overtime for nurses. The second bans hospitals from using government funds to pay employees or labor consultants to persuade employees to support or oppose unionization. To learn more about the law and its potential implications for hospital employers, please continue reading Littler's ASAP, Massachusetts Healthcare Bill Bans Mandatory Overtime for Nurses and Limits Spending to Oppose Unionization, by John Doran and Carie Torrence.
NLRB Finds Union Waiver in Two Recent Decisions, Including the Closely-Watched Hospital Flu Shot Case
The National Labor Relations Board affirmed the 2011 administrative law judge decision dismissing the finding that the union waived its right to bargain with Virginia Mason Hospital over implementation of a policy requiring nurses to take a flu shot or wear a facemask. During the same week, the Board held an employer did not violate the National Labor Relations Act when it unilaterally implemented a new safety procedure that required employees to spend 5-10 minutes at the beginning of each shift reviewing and initialing a safety checklist. To learn more about the decisions and their potential implications for employers, please continue reading at Littler's Healthcare Employment Counsel blog.
In Frenchtown Acquisition Co. v. NLRB, the Sixth Circuit Court of Appeals ruled that nursing home charge nurses were not “supervisors” under the National Labor Relations Act (NLRA) and therefore were free to unionize. The court rejected the nursing home operator’s argument that the charge nurses were supervisors of the nursing aides, finding that they did not engage in supervisory activities, as defined by the NLRA.
The NLRA defines a supervisor as an individual who has the authority to engage in any one of the following 12 supervisory functions: hiring, transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, disciplining, or responsibly directing other employees.
In Frenchtown, the Sixth Circuit rejected the employer’s claim that charge nurses disciplined, hired, assigned, transferred, and responsibly directed nursing aides, engaging in a fact-intensive analysis of each of the employer’s claims. The court dissected the examples of the activities the nurses performed, reflecting not only the high level of scrutiny that is given to such claims, but also providing insight into the court’s view of the requirements for each of the supervisory functions alleged.
To learn more about the decision and its potential implications for employers, please continue reading at Littler's Healthcare Employment Counsel blog.
Recently, in Virginia Mason Hospital, 357 NLRB No. 53, the National Labor Relations Board considered whether a Seattle hospital violated its duty to bargain under the National Labor Relations Act when it implemented a flu-prevention policy that required nurses to wear a mask if they refused to be immunized against influenza. In doing so, the Board reversed the administrative law judge’s (ALJ) holding that the hospital’s decision to implement the policy was permissible because it went to the hospital’s “core purpose” of protecting its patients’ health and was narrowly tailored to achieve its purpose. Continue reading this entry at Littler's Healthcare Employment Counsel.
Marking the end of Chairman Wilma Liebman's term, the National Labor Relations Board issued three significant decisions at the end of August that overturn long-standing Board precedent. In what may be the most significant of the three, a decision involving the healthcare industry, the Board paved the way for the proliferation of bargaining units by overruling its 1991 decision in Park Manor Care Center, 305 NLRB 872 (1991), and determining that certified nursing assistants ("CNAs") comprise an appropriate stand-alone bargaining unit. Although it involved a nursing home, the Board's decision is not limited to the healthcare industry and fundamentally changes the standard for determining appropriate bargaining units applicable to all employers. Continue reading this article here.
Photo credit: AlexRaths
By Fred Miner
The National Labor Relations Board's recent expansive view of employee rights is not news. What is news is the current Board majority's willingness to hold employers liable for conduct that, on its face, does not infringe any rights protected by federal labor law. Some recent cases have raised the question whether an employer's lawful conduct can nevertheless establish that an unfair labor practice has occurred.
In one such case, the U.S. Court of Appeals for the D.C. Circuit recently answered "no." In Jackson Hospital Corp. v. NLRB, (pdf) a hospital indefinitely suspended a nurse because of her refusal to participate in a meeting with her supervisors without the presence of a union representative. The Board found that the nurse had no legal right to a union representative at the meeting. To the contrary, because it was being held solely to present discipline that her supervisor already decided to impose, the right to request union representation under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) did not apply. Continue reading this entry at Littler's Healthcare Employment Counsel.
Employers who provide employee health insurance containing prescription drug benefits are paying closer attention to the costs associated with these benefits. In particular, employers are exploring ways to control costs by altering the plan’s drug formulary, the part of the plan that establishes what drugs are covered and sets different cost “tiers” for various brand-name drugs and their generic equivalents. Employers faced with increasing prescription drug costs often ask insurers for less costly alternatives. When the insurance plan applies to a union-represented workforce and is incorporated into a collective bargaining agreement, this can spell trouble.
A recent opinion of the United States Court of Appeals for the D.C. Circuit is a case in point. The employer in Caterpillar Inc. v. NLRB, 2011 U.S. App. LEXIS 11163 (May 31, 2011), provided a collectively bargained prescription drug benefit to its employees under a union contract. Over the years, the details of the plan had been modified, without objection by the union.
Despite Union's Failure to Provide Notice of Picketing, Board Rules Employee Picketing Activity is Protected
In a recent case affecting health care employers uniquely, the NLRB decided in Correctional Medical Services, Inc., 356 NLRB No. 48, that employees’ picketing was protected activity, despite the fact that the union committed an unfair labor practice by not giving proper notice of picketing. In doing so, the Board reversed its earlier ruling in the case and found that Correctional Medical Services, Inc. (“CMS”) unlawfully threatened, interrogated, and terminated its employees in violation of the National Labor Relations Act for their participation in the picketing.
In a continuing example of the labor movement’s penchant for self-immolation, the SEIU prevailed in a hard fought campaign against the NUHW, the National Union of Healthcare Workers, at Kaiser Healthcare in California. As previously reported in this blog, the NUHW was created by the former leaders of an SEIU local based in Oakland known as United Healthcare Workers-West. It was a bitter divorce marred by taunts, accusations and lawsuits that made an episode of the Jersey Shore look like family entertainment. In the end, the SEIU won a $1.5 million dollar verdict against NUHW and 15 of its leaders for improperly devoting their efforts to SEIU-represented employees while simultaneously creating the rival union.
Pressing its case to Kaiser workers to abandon the SEIU, the National Union of Healthcare Workers (NUHW) has established a new website urging employees to vote in its favor in the historic representation election being conducted by the National Labor Relations Board (NLRB).
The web site, www.kaisercoworkers.org, purports to answer questions by employees voting in the election, but is composed mostly of campaign-style advocacy. The site contains endorsements by members who assert NUHW will be a stronger and more rigorous bargaining representative than SEIU. For instance, it lambasts SEIU for establishing a “healthcare benefits takeaway committee” with Kaiser, and accuses SEIU of cooperating with Kaiser to allow cuts in employees’ pension plan, elimination of more than 1,700 jobs, and conversion of secure jobs into insecure “flex” positions. Ironically, however, the site also assures employees that their current contract will remain in place and that recent wage increases negotiated by the SEIU will not be lost if NUHW replaces SEIU. Continue reading this entry at Littler's Health Care Employment Counsel blog.
As a result of the NLRB’s June 3, 2010 decision (pdf) refusing to review a regional director’s ruling that the interns and residents at St. Barnabas Hospital in the Bronx, New York, are employees, the ballots they cast in a union election on June 18, 2009 will shortly be counted. The results of the vote will determine whether the hospital’s interns and residents will be joining the Service Employees International Union (SEIU). The central issue presented by the election petition filed by an SEIU local in 2009 was whether the hospital’s interns and residents were “employees” with the right to organize, or students not covered by the National Labor Relations Act (NLRA). Continue reading this entry at Littler's Healthcare Employment Counsel blog.
Photo credit: Steve Debenport Imagery